Visa Lawyer Blog
We have great news for our readers regarding a recent court’s decision to temporarily halt the “public charge” rule during the Coronavirus pandemic. On Wednesday, July 29, a federal judge in the state of New York issued a ruling that blocks the government’s enforcement of the “public charge” rule on non-citizens seeking permanent residency in the United States, and nonimmigrant visa applicants alike, for as long as the coronavirus pandemic remains a public health emergency. The ruling was made in response to a federal lawsuit filed by several states against the government entitled, U.S. District Court for the Southern District of New York (SDNY) in State of New York, et al. v. DHS, et al. and Make the Road NY et al. v. Cuccinelli, et al.
What does this mean for visa and adjustment of status applicants?
Federal Judge George Daniels has approved a nationwide injunction, immediately stopping the government from “enforcing, applying, implementing, or treating,” as effective the “public charge” rule for any period during which there is a declared national health emergency in response to the COVID-19 outbreak.
This means that effective June 29th both consular officers and USCIS immigration officials cannot enforce any part of the “public charge” rule for as long as the injunction remains and place, and a national public health emergency exists.
Why did the judge make this ruling?
The judge agreed with the states of New York, Connecticut, and Vermont that the “public charge” rule would cause irreparable harm on non-citizens seeking entry to the United States because the rule discourages such individuals from obtaining the necessary treatment and care needed during the Coronavirus pandemic. The judge considered the “substantial harm” the public would suffer if the government continued to enforce the “public charge” rule and found that the temporarily injunction was necessary to allow non-citizens to obtain much needed public benefits for preservation of the public’s health and safety.
In defense of his opinion, the judge stated, “no person should hesitate to seek medical care, nor should they endure punishment or penalty if they seek temporary financial aid as a result of the pandemic’s impact.”
The judge further stated in his ruling that the continued application of the “public charge” rule during the global pandemic, “would only contribute to the spread of COVID-19 in our communities.”
Will USCIS Comply with the Judge’s Order?
Yes. On July 31, 2020, the United States Citizenship and Immigration Services (USCIS) issued a statement announcing its recognition of the judge’s ruling, and its immediate compliance with the order. The agency stated that it will discontinue enforcement, application, implementation, and treatment of the “public charge,” rule known as “Inadmissibility on Public Charge Grounds,” to both non-citizens and visa applicants during any period in which there is a declared national health emergency in response to the COVID-19 outbreak.
Will the Public Charge Rule be Enforced?
No. For as long as the July 29, 2020 injunction remains in place, USCIS will not apply the February 2020 “Inadmissibility on Public Charge Grounds Final Rule,” but will apply the 1999 public charge guidance policies that were in place before the “public charge” final rule was implemented on February 20, 2020.
That means that effective June 29th (the date of the judge’s ruling) USCIS will no longer enforce the public charge rule, including to petitions already filed but not yet adjudicated.
I-539 Applications Received On or After July 29th will not be Subject to Public Charge Rule
In their statement, USCIS made clear that the “public charge,” rule will not be enforced against any application or petition for extension of nonimmigrant stay or change of nonimmigrant status received on or after July 29, 2020, consistent with regulations in place before the “public charge” final rule was implemented.
Applications and Petitions Received On or After July 29th will not be Subject to Public Charge Rule
For applications and petitions that USCIS adjudicates on or after July 29, 2020, pursuant to the injunction, USCIS will not consider any information provided by an applicant or petitioner that relates to the Public Charge Rule, including information provided on the Form I-944, or information on the receipt of public benefits in Part 5 on Form I-539, Part 3 on Form I-539A or Part 6 on Form I-129.
Applications Postmarked On or After July 29th SHOULD NOT include Form I-944
Applicants and petitioners whose applications or petitions are postmarked on or after July 29, 2020, should not include the Form I-944 or provide information about the receipt of public benefits on Form I-485, Form I-129, or Form I-539/I-539A.
USCIS will issue guidance regarding the use of affected forms. In the interim, USCIS will not reject any Form I-485 on the basis of the inclusion or exclusion of Form I-944, nor Forms I-129 and I-539 based on whether Part 6, or Part 5, respectively, has been completed or left blank.
Helpful Links
- USCIS Compliance Statement
- Federal Court Ruling
- Inadmissibility on Public Charge Grounds Final Rule
- Public Charge FAQs Blog
- Youtube Video
Questions? If you would like to schedule a consultation, please text or call 619-569-1768.
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